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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

March 20, 2019

Individuals serving a public entity as independent contractors are not eligible for member service credit in a New York State public retirement system

Petitioner, a member of the New York State and Local Employees' Retirement System [NYSERS], applied for retirement service credit attributed to his alleged employment by Nassau County for a period running from October 15, 1974 to December 19, 1976. His application was rejected. After a hearing, the Hearing Officer found that Petitioner had not established his entitlement to additional member service credit in NYSERS. The Comptroller adopted the Hearing Officer's findings of fact and conclusions of law and Petitioner appealed the Comptroller's determination.

The Appellate Division confirmed the Comptroller's ruling. Citing Matter of DeLuca v New York State & Local Employees' Retirement Sys., 48 AD3d 876, the Appellate Division explained that "[I]t is the Comptroller's duty to determine retirement service credits and his determination will be upheld by this Court if rational and supported by substantial evidence" and it is the claimant's burden to show that he or she is entitled to additional retirement member service credit.

According to the decision, Petitioner had testified that [1] he did work for and was issued checks by Nassau County during the relevant period;* [2] he worked under contract for the now-defunct Tri-State Planning Commission;** and [3] Nassau County was reimbursed through the Commission "for much of the money paid to him."

Although Petitioner "did not recall the exact terms of his relationship with the Commission," the Appellate Division reported that there were indications that the relationship was not one of employer and employee, e.g., [1] Social Security records indicating that Petitioner's 1974-1976 income came from self-employment and [2] Petitioner had previously characterized his work during the relevant period of time as that of an independent contractor.***

These element, said the court, demonstrated that Petitioner was not "on the payroll of a participating employer during the time in question" and constitutes substantial evidence for the Comptroller's decision denying Petitioner the additional member service credit with NYSERS he sought, notwithstanding evidence that might support a different result.

* In addition, Petitioner testified that FICA payroll taxes were not deducted from the checks he received for his service and that he was not on the County payroll.

** The Tri-State Regional Planning Commission was the conduit for a total of about $3 billion in Federal aid to counties and municipalities in New York, New Jersey and Connecticut for more than 20 years and was discontinued in 1982.

*** For additional information concerning the legal status of independent contractors go to:

The decision is posted on the Internet at: